Promise conditional ments are made specially payable at a particular place only, presentment for payment at that place is necessary (a). If a bond is conditioned for the payment of a sum of money on demand, a demand must be made before the bond is forfeited and an action can be brought upon it (b); but on a bond conditioned for payment of money, without any stipulation for a demand, a demand is not required, and the condition is broken by non-payment, although no demand is made (c). If a warrant of attorney be given for payment of money on demand, an actual demand is necessary; and proceedings taken under it without such demand will be set aside (d). A person having executed a warrant of attorney to secure the re-transfer, upon demand, of stock lent to him, became insane; it was held that a demand made to him in that state was ineffectual (e). A surety is not entitled to a demand for payment upon the default of the debtor, unless he has expressly stipulated for it (f); and in order to charge a surety upon a contract of guarantee a request to the debtor to pay is not necessary, where it is not necessary to charge the debtor (g). If a factor, receiving goods for sale on commission, contracts to account on demand, a demand of an account is necessary in order to charge him in an action for not accounting (h). A contract is sometimes made conditional upon notice of upon notice. Some matter being given; and then notice must be given accordingly, in order to render the promise absolute, and must be alleged and proved in an action brought upon it (i). A party contracting to do an act upon the happening of some event is not, in general, entitled to notice of that event as a condition precedent to his liability, unless he has expressly stipulated for it; but in some cases it is necessarily implied from the nature of the transaction that notice should be given, although not expressly stipulated for (a). The general rule as to the cases where notice is impliedly required has been laid down as follows:-"That where a party contracts to do a certain thing in a certain specific event with which he can make himself acquainted, he is not entitled to any notice, unless he stipulates for it; but when it is an event which lies within the peculiar knowledge of the opposite party, then notice ought to be given him " (b). It is also laid down as a rule that if the matter does not lie more properly in the knowledge of one of the parties than the other, notice is not requisite (c). A buyer promised to pay for barley as much as the seller sold it for to any other man; the seller was held bound to give notice before he could call upon the buyer to pay, because the person to whom the barley was to be sold was altogether at the option of the seller, who might sell it to whom he pleased (d). The defendant covenanted not to do anything whereby an insurance, to be effected on his life by the plaintiff at any office which the latter should choose, should be avoided or prejudiced; it was held that the defendant was not bound by this covenant until the plaintiff had given him notice that he had chosen an office, and had effected a policy (e). By a contract for the sale of land the vendor covenanted that he would deduce a good title and produce the deeds to verify it on a certain day at one of three places mentioned; it was held to be incumbent on him to give notice to the vendee at which of the three places he would be ready to produce his title, and that, not having done so, he was liable for a breach of covenant in not producing the deeds, notwithstanding the non-attendance of the vendee (ƒ). (a) Per Parke, B., Tyse v. Wakefield, 6 M. & W. 442, 453. (b) Per Lord Abinger, C.B., Vyse v. Wakefield, 6 M. & W. 442, 452. (c) 1 Wms. Saund. 117 a, n. (2); 2 ib. 62 a; 1 Chit. Pl. 7th ed. 337; per Parke, B., Dawson v. Wrench, 3 Ex. 359, 362. (d) Haule v. Hemyng, Cro. Jac. 422, cited 6 M. & W. 454. (e) Vyse v. Wakefield, 6 M. & W. 442. (f) Rippinghall v. Lloyd, 5 B. & Ad. 742. Promise upon no. tice. On a policy of insurance on a ship it is held not to conditional be a condition precedent to the liability of the underwriter that the insured should give him notice of the loss; whether or no the ship was damaged by storms being a fact as much within the knowledge of one party as the other (a). "If a man is bound by obligations or covenants or promises to do a thing on the performance of an act by a stranger notice need not be alleged, for it lies in the defendant's knowledge as much as the plaintiff's and he ought to take notice at his peril "(b). If a man be bound to another to indemnify him against the acts of a third person, no notice is necessary to be given by the obligee to the obligor of those acts (c). So it is held, with respect to guarantees, that no notice is necessary (d); unless the surety has stipulated expressly for it (e). Notice of an award is not a condition precedent to the liability to perform it, because both parties may equally take notice of it; if, however, it be provided that the award should be notified to the parties, it is no award until notice be given (f). Notice is necessary in order to proceed against a party by attachment for contempt in not performing an award (g). Upon a bill of exchange accepted payable to the drawer or his order, and upon a promissory note made payable to the payee or his order, no notice of indorsement need be given to the acceptor or maker; he is bound himself to find out the holder and pay him when the instrument is due (h). But the parties secondarily liable, as the drawer or indorser of a bill of exchange, or the indorser of a promissory note, are entitled to have the instrument duly presented for payment, and to receive notice of dishonour, which is a matter peculiarly within the knowledge of the holder (i); and the (a) Dawson v. Wrench, 3 Ex. 359. (b) 2 Wms. Saund. 62 a; and cases there cited. (c) Cutler v. Southern, 1 Wms. Saund. 115. (d) Per Parke, B., Dawson V. Wrench, 3 Ex. 359, 362; Hitchcock v. Humfrey, 5 M. & G. 559. (e) Sicklemore v. Thistleton, 6 M. & S. 9. (f) 2 Wms. Saund. 62, n (4). (h) Reynolds v. Davies, 1 B. & P. 625; Bradbury v. Emans, 5 M. & W. 595; Price v. Price, 16 M. & W. 232, 242. (i) 2 Wms. Saund. 62 a, n (d); Byles on Bills, 8th ed. 186, 251. notice of dishonour must be given within a reasonable time, which depends upon the circumstances of each case (a). tion of Questions of construction often arise as to whether the Construc language of a contract imports a condition precedent to the contracts liability or not, of which the following cases may be cited as as to conexamples : A contract for the sale of goods, "on arrival by a certain ship," is held to be conditional upon the arrival of the goods on board the ship, so that if the ship arrives without the goods, or if the ship is wrecked, the seller is not bound (6). So, upon a contract for the sale of goods, "to arrive by a certain ship," the arrival of the goods in the ship is a condition precedent (c). Such a contract does not amount to a warranty on the part of the seller that the goods should arrive if the vessel arrives, but to a contract for the sale of goods at a future period subject to the double condition of the arrival of the vessel, with the specific cargo on board (d). But upon a contract for the sale of goods to be delivered on the safe arrival of a certain ship," it was held that the arrival of the goods was not a condition precedent as the arrival of the ship was; and the contract to deliver became absolute upon the arrival of the ship, although without the goods on board (e). A contract of sale of goods to arrive by a ship to be named "upon shipment of the goods," or "by the next mail," is conditional, as to the liability of the buyer to accept the goods, upon the naming of the ship according to the contract (ƒ). In a contract for the sale of cotton from ships arriving at a port, the expression, "the said cotton to be taken from the quay," was construed to be a stipulation for the seller's benefit only, compelling the purchasers, if required, to take the cotton from the quay, but not a stipulation as to the (a) Darbishire v. Parker, 6 East, 3; Byles on Bills, 8th ed. 261. (b) Boyd v. Siffkin, 2 Camp. 326; see Idle v. Thornton, 3 Camp. 274. (c) Lovatt v. Hamilton, 5 M. & W. 639; Johnson v. Macdonald, 9 M. & W. 600. (d) Ib. (e) Hale v. Rawson, 4 C. B. N. S. 85; 27 L. J. C. P. 189; and see Gorrissen v. Perrin, 2 C. B. N. S. 681; 27 L. J. C. P. 29. (f) Graves v. Legge, 9 Ex. 709; 11 Ex. 642; 23 L. J. Ex. 228; 26 ib. 316; Gilkes v. Leonino, 4 C. B. N. S. 485. ditions precedent. tracts as to precedent. Construc- place of delivery forming a condition precedent to the purtion of con- chaser's liability to accept the cotton (a). conditions A stipulation in a charterparty that the vessel shall sail on or before an appointed day, is held, in general, to be a condition precedent to the liability of the charterer to perform the charterparty (b); so, a stipulation that the ship shall be ready on or before an appointed day (c). But the stipulation that the ship shall sail with convenient speed, or within a reasonable time, or direct to the port of loading, is held not to be a condition precedent, as to the time of sailing (d); though, if by reason of a breach of such stipulation the object of the voyage would be wholly frustrated, the charterer might be excused from the performance of the charterparty on his part (e). In a charterparty the ship was described as "now at sea having sailed three weeks ago;" it was held that the liability of the charterer to load was conditional upon the truth of that statement (f). So, the description in a charterparty of the ship as now in the port of Amsterdam" was held to constitute a condition precedent to the obligation of the charterer (g). The description of the ship in a charterparty as being A 1 is a warranty of the ship being of that class at Lloyd's, and constitutes a condition precedent to the liability of the charterer to load (h); but such description only warrants the class at the time of making the charterparty, and does not warrant the continuance of the class (i). The representation that the ship is tight, staunch, and strong, is not a condition precedent (j). Upon a covenant in a lease to expend a sum of (a) Neill v. Whitworth, 18 C. B. N. S. 435; 34 L. J. C. P. 155. (b) Glaholm v. Hays, 2 M. & G. 257; Crookewit v. Fletcher, 1 H. & N. 893; 26 L. J. Ex. 153. (c) Oliver v. Fielden, 4 Ex. 135; (d) Tarrabochia v. Hickie, 1 H. & (e) Ib.; and see Behn v. Burness, 204, 205. money in (f) Ollive v. Booker, 1 Ex. 416. (g) Behn v. Burness, 1 B. & S. 877; 3 ib. 751; 31 L. J. Q. B. 73; 32 ib. 204, explaining Dimech v. Corlett, 12 Moore, P. C. C. 199. (h) Ollive v. Booker, 1 Ex. 416; and see Routh v. Macmillan, 2 H. & C. 750; 33 L. J. Ex. 38. (i) Hurst v. Usborne, 18 C. B. 144; 25 L. J. C. P. 209. (j) Tarrabochia v. Hickie, 1 H. & N. 183; 26 L. J. Ex. 26. |